The criminal-justice system is set up never to jail police. Could restorative justice serve communities better?

May 5, 2015

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People celebrated in the streets of Baltimore at news of the criminal indictments of the six officers for their role in the death of Freddie Gray. State Attorney Marilyn Mosby, who brought the indictments, has been lionized for her quick and decisive action, becoming an overnight media sensation. Many police-reform activists have crowed with joy about the value of protest and even riots in forcing the state to hold these officers accountable. But is the eventual incarceration of these officers the best, most just outcome for them, Freddie Gray’s family, and the African-American communities of Baltimore and the United States more generally?

I myself have called in the past for the establishment of independent police prosecutors or “blue desks” at the state level as an alternative to relying on local prosecutors, who have an inherent conflict of interest in indicting and prosecuting police. These offices could help restore public trust in the criminal-justice system and hopefully get to the bottom of incidents of police misconduct through thorough and independent investigations. Police who break the law and violate the public trust should be held accountable for their actions.

Chicago prison abolition activist Maraime Kaba (@PrisonCulture on Twitter) warns us, however, to be wary of celebrating prematurely: “If your concept of ‘justice’ means convictions for cops, then you should be very concerned because this current system as designed is likely not to deliver. If your concept of ‘justice’ means prison time for cops, then you should be despondent because this system as currently constituted almost NEVER delivers that. If your concept of ‘justice’ means Black people being able to live our lives free from state violence, then today is not a day of celebration.”

The role of the state’s attorney is based on a very degraded notion of justice. It relies almost solely on the notion of punishment in the form of incarceration acting as a deterrent on the behavior of the convicted (specific deterrence) and the rest of us (general deterrence). This whole system assumes that people are simplistic engines of rational calculation whose behaviors can be manipulated by a series of escalating threats and punishments. We know that this system rarely provides real justice for victims or communities and often destroys the lives of those being punished. More importantly, it doesn’t work. For generations we’ve been waging a war on drugs that has relied on the ever increasing incarceration of young people, and yet drugs are cheaper, of higher quality, and easier to obtain than ever before. No amount of mass incarceration seems to make any difference. It’s a little like threatening suicide bombers with the death penalty, in that it fundamentally misunderstands the nature of human motivation.

Sending killer cops to jail will undoubtedly produce a kind of short-term catharsis for the many victims of police misconduct and those that support them. It may produce some sense of much needed justice for the family and friends of Freddie Gray, but will it really make them any safer or reduce the power or predilections of police to go on victimizing poor people of color?

There will also likely be some kind of short-term deterrent effect; officers will certainly start properly seat-belting prisoners they are transporting. But it is unlikely to bring an end to mass criminalization and the disrespect and violence that inevitably go with it. We cannot have a kinder and gentler war on drugs, crime, and disorder.

Will a criminal prosecution really lead us towards more systemic changes in policing? It is possible that, as officers turn against each other to avoid prison, we will learn more about what really happened to Freddie Gray. Already, one officer is saying that he pleaded with his colleagues to secure him properly in the back of the van. The threat of punishment, however, may only lead to more confusion as officers begin to produce contradictory self-serving versions of the event. Defenders of the police, such as their union, will be allowed to maintain the claim that the officers did nothing wrong and that Gray was a criminal who had it coming. Even an admission of guilt, as part of a plea deal—the most likely outcome—rarely involves a full public accounting of the facts.

Perhaps we should consider the value of an alternative approach. One that holds officers accountable but works to serve the interests of communities and victims more fully and in the process produce a much fuller public accounting of the actions and mindsets of the police involved. Restorative justice mechanisms offer us a way to do this.

Rather than relying on punishment and deterrence to provide justice and motivate behavior, restorative justice attempts to involve victims, offenders, and communities in producing outcomes that benefit everyone involved as much as possible. At its core is a definition of justice rooted in the ideal of maximizing the well-being of as many as possible rather than pandering to the emotions of revenge and retribution.

In restorative justice, offenders are expected to fully account for their behaviors in dialogue with the individual and communities affected by their actions. They must then work with those parties to develop actions to try to repair the damage done as much as possible. Victims and communities must be willing to engage this process as well, by agreeing to seek a restorative solution, an insurmountable challenge in some cases.

Restorative-justice principles are derived from the practices of indigenous peoples, who were motivated to work to maintain social stability in the face of behavior that violated community norms and disrupted social relations. These mechanisms have now been adopted in many settings. In the United States they are most commonly used in schools and, to a lesser degree, community courts. There is now abundant evidence that peer-to-peer mediation and restorative-justice programs provide much better outcomes for victims, offenders, and schools than traditional punitive-discipline systems, especially those that rely on the police and criminalization. While there are many variants, most of these programs involve accused students appearing before a committee of their peers and any victims and discussing the motivation for their actions and expressing a desire to make amends. Peers and victims then work with the offender to develop a response that restores social harmony and tries to directly address what may have motivated the problematic behavior in the first place. Perhaps the problem lies in something going on at home, such as abuse or neglect. Perhaps it is rooted in a bad dynamic between the student and a teacher. A restorative-justice model might engage these root causes as well by involving social services or a process to resolve the problem between the teacher and the student, or possibly a class transfer. The offending student might be asked to perform some kind of restitution such as mentoring other students about how to manage problems at home, or agreeing to perform better in school. Failure to live up to the agreement would reopen the process. In worst-case scenarios, a student might eventually be removed from the school if the problems being confronted can’t be surmounted in that context, but this has been rare in schools that use this process—much rarer than the epidemic of school suspensions and expulsions now commonplace in many schools.

Restorative Justice has also been used at a societal level. Various forms of “truth and reconciliation” procedures have been developed from South Africa following apartheid to Central America in the wake of brutal dictatorships and military atrocities. In most cases the goal of these processes is not a criminal conviction but instead a full public accounting of what happened and a public admission of guilt by those responsible. For many of the victims and their families, this is a much more powerful outcome than a prison sentence. For many, the desire to know what happened to their loved one who was “disappeared” is of paramount importance. It is also the goal of such processes to establish clear lines of responsibility and to uncover the political dynamics that would produce such reigns of terror, so that we can all learn as a society how to fight against such abuses in the future. It also requires that the oppressors give up their claims of innocence and admit that their political objectives were not in the best interests of society. In return, perpetrators are often allowed to remain free from prison, though they must now live with the public humiliation of being publicly branded a participant in human-rghts abuses and oppression. For some societies the value of this is great, because it undermines the possibility of these same people and their supporters remobilizing as a political force of counterrevolution and retrenchment.

How would this process work in the case of the officers accused of killing Freddie Gray? First, Mr. Gray’s family and the larger community would have to be willing to engage this process. Second, the officers would have to agree. If they do, then the first step would be a public accounting of what happened, including the motivations of the officers involved. Why did they chase and arrest Gray in the first place? Did they understand that there was no legal basis for stopping him? Is this a routine practice? What is the motivation for this persistent violation of people’s civil rights? Why did they refuse his pleas for medical assistance and fail to properly secure him in the van? Was this a form of intentional punishment, as has been indicated in previous incidents, or a kind of casual disregard for his well-being and basic human rights?

A public accounting of why they did what they did could be of immense value to the community and help with the healing for Mr. Gray’s family and friends. If it turns out that Mr. Gray was stopped in large part because of suspicion of carrying drugs, as had happened in the past, that would make him yet another casualty in a pointless and ineffective war on drugs. Maybe this could create the public will necessary for Baltimore or all of Maryland to join Washington, DC; Colorado; and Washington State in ending the criminalization of marijuana.

Perhaps we would learn more about the nature of police culture and why it so frequently treats young men of color as less than human. Heartfelt accounts from actual police officers about the callousness of their actions and attitudes might lead to some real soul searching on the part of police officers, political leaders, and the public about the caustic nature of much of police culture as well as possible solutions.

In return, the officers would be compelled to take actions to try to repair some of the harms they have caused to the victim’s family and community. These offices could be put to work on community projects that would benefit the community such as restoring parks. Perhaps they could be cajoled into living in the community for some length of time to experience firsthand what life is like there. Possibly more importantly, they could be compelled to work with other police officers in Baltimore and elsewhere to try to get to the root of abusive police practices. Police are much more likely to respond to the real-world experiences of fellow officers than to the urgings of the community activists who often appear before them.

There is no way to know for certain how such a process would play out. The interests of the family and community would have to be satisfied, and officers would have to genuinely engage the process. But the upsides are high, especially compared with the pointlessness of putting more people in prison—an institution that has never provided true justice for communities of color.